Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 292, Mars 1994

1. 444. On 26 January 1993 the Miners International Federation (MIF) presented a complaint of violation of trade union rights against the Government of Turkey. It sent additional information in a communication dated 19 February 1993.
2. 445. The Government sent its observations in communications dated 19 April and 8 October 1993.
3. 446. Turkey has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 447. In its communication dated 26 January 1993, the Miners International Federation (MIF) alleges that Turkish miners were prohibited from striking in a dispute with Turkish Coal Enterprises and that this dispute has been referred for compulsory arbitration.
2. 448. The complainant organization states that following the breakdown in December 1992 of negotiations between the Mine Workers' Union of Turkey and Turkish Coal Enterprises, the dispute between the parties was referred for compulsory arbitration under sections 29 and 30 of Act No. 2822 of 5 May 1983 respecting collective labour agreements, strikes and lockouts, which contain a long list of services where strikes are prohibited.
3. 449. The complainant organization recalls that since 1983 ILO bodies have repeatedly urged the Turkish Government to restrict the application of compulsory arbitration established by the legislation to cases where a work stoppage due to a strike would endanger the lives, personal safety or health of the whole or a part of the population. It states that so far no steps have been taken to fulfil these requests. The consequence is that unions are severely hampered in their ability to improve working conditions because they are denied recourse to strike action and are forced into compulsory arbitration.
4. 450. The complainant organization explains that according to section 32 of Act No. 2822, "in disputes concerning the establishments or the activities and services where strikes and lockouts are probibited, any party may apply to the Supreme Board of Arbitration within six working days of receipt of the report referred to in section 23 (...)", which means in practice that disputes are referred to a board where the trade union movement has two representatives out of eight and which is therefore under the control of the Government and employer majority.
5. 451. The complainant organization also refers to the Committee's conclusions in Cases Nos. 997, 999 and 1029 concerning Turkey, and considers that the provisions of existing legislation, as applied to the coalmining industry, constitute an infringement of Article 4 of Convention No. 98.
6. 452. The MIF concludes that in spite of unsatisfactory legislation which restricts their trade union activities, the miners are very determined to secure their rights and obtain significant wage increases. It expresses support for the Mine Workers' Union of Turkey in its insistence that legislation imposing a strike ban in the mining industry be rescinded.
7. 453. In its communication dated 19 February 1993, the complainant organization states further that 21,126 miners work for Turkish Coal Enterprises in production works which feed thermal power stations. This category of workers is affected by the strike ban. The number of remaining miners employed by the Turkish Coal Enterprises who are not affected by prohibitions is 4,161. It specifies that the negotiations referred to began on 2 September 1992 and covered the total number of 25,287 miners. On 12 November 1992 a notice of dispute was issued and a mediation period followed, beginning on 23 November and ending on 13 December. On 30 December 1992 the dispute was referred to the Supreme Board of Arbitration.
8. 454. The complainant organization states further that protest marches were held on 6 January 1993 in different mining regions and that on 7 January the 4,161 miners not affected by the strike ban decided to hold a strike. A new collective agreement was signed on 25 January 1993.

B. The Government's reply

1. 455. In its communication dated 19 April 1993 the Government states that it notes the allegations made by the MIF and points out that it has ratified Convention No. 87.
2. 456. In its reply dated 8 October 1993, the Government explains that the national practice of compulsory arbitration takes its source from article 54 of the Constitution, that it is an impartial procedure in which the parties may participate at any stage and that the awards are binding on the parties. Compulsory arbitration is followed in cases of prohibition or restrictions on strikes in order to protect workers who are thus denied an essential means of defending their occupational interests.
3. 457. The Government states further that it is a procedure which is resorted to in exceptional situations only. Moreover, before referring a dispute to compulsory arbitration it is possible that the dispute can be resolved through the mediation of the Ministry of Labour and Social Security or by a private mediator mutually agreed upon by the parties. In the case at hand, continues the Government, the parties took the latter option and a satisfactory solution was achieved.
4. 458. The Government points out that section 29 of Act No. 2822 was amended by Act No. 3451 of 27 May 1988 so as to narrow the scope of prohibitions on strikes. Thus, the phrase "production, refining or distribution of (...) coal" in paragraph 3 was replaced by the phrase "lignite production feeding thermal power plants". Moreover, a committee recently set up by the Ministry with the task of submitting proposals on labour issues, including that of limiting the strike prohibition, is currently carrying on its studies. Whether the strike prohibition will be lifted from lignite production units feeding thermal power plants will depend on the evaluation to be made after the completion of the studies of the above-mentioned committee and after consultation of the social partners.

C. The Committee's conclusions

1. 459. The Committee notes that the allegations in this case concern the prohibition on strikes imposed by legislation on miners employed in lignite production with feeding thermal power plants, and the referral of labour disputes in these services for compulsory arbitration.
2. 460. The Committee notes that the complainant organization states that following the breakdown in December 1992 of negotiations between the Mine Workers' Union of Turkey and Turkish Coal Enterprises, the dispute was referred for compulsory arbitration under section 32 of Act No. 2822 of 5 May 1983 respecting collective labour agreements, strikes and lockouts. The Committee notes also that the Government, on the other hand, states that the parties to the dispute decided to refer it to mediation and that a satisfactory solution was thus achieved.
3. 461. While noting the contradiction between these two statements, the Committee observes that sections 22 and 23 of Act No. 2822 of 1983 do in fact provide that the parties may resort to a mediator for purposes of settling a dispute. Under the last paragraph of section 32 of the Act, however, in disputes concerning the establishments or the activities and services where strikes are prohibited, any party may apply to the Supreme Board of Arbitration within six working days of receipt of the report in which the mediator noted that the parties failed to reach an agreement to settle the dispute.
4. 462. The Committee observes that the Government explains that compulsory arbitration is an impartial procedure which is resorted to in exceptional situations and in which the parties may participate at any stage.
5. 463. The Committee recalls, firstly, that it had already considered that the provisions of Turkish legislation respecting the use of binding arbitration to end a strike, apart from cases of work stoppages which result from a strike which threatens to endanger the life, personal safety or health of the whole or a part of the population and in the case of acute national crises, restrict union rights and are not compatible with the principles of freedom of association (see 282nd Report of the Committee, Cases Nos. 997, 999 and 1029, para. 16).
6. 464. Taking into account the recent ratification of Convention No. 87 by Turkey, which it welcomes, the Committee once again points out to the Government that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 362). The Committee also draws the Government's attention to the principle that the right to strike may be restricted or even prohibited in the civil service - civil servants being those who act on behalf of public authorities - or in essential services in the strict sense of the term, i.e services the interruption of which would endanger the lives, personal safety or health of the whole or a part of the population (see Digest, op. cit., para. 394). However, the principle regarding the prohibition of strikes in essential services might lose its meaning if a strike were declared illegal in one or more undertakings which were not performing an "essential service" in the strict sense of the term (see Digest, op. cit. para. 400). Morever, the Committee considers that the substitution by legislative means of compulsory arbitration for the right to strike as a means of resolving labour disputes can only be justified in respect of essential services in the strict sense of the term (see Digest, op. cit., para. 387).
7. 465. As regards the present case, the Committee has already stated that it is of the view that the mining sector is not an essential service in which the right of workers to promote and defend their interests by means of strike action may be prohibited (see Digest, op. cit., para. 406). While aware that a stoppage of the services supplying lignite to thermal power plants may be such as to disturb the normal life of the community, the Committee considers that it would be difficult to maintain that a stoppage of such services would be, by definition, such as to provoke an acute national crisis.
8. 466. The Committee is, however, aware of the difficulties that an interruption in the lignite supply could entail for thermal power plants. It is therefore of the opinion that in a sector such as mining it would be admissible for the parties, if necessary with the participation of the Government, to agree on establishing a minimum service to be maintained in the event of a strike.
9. 467. Taking account of all of these elements, the Committee requests the Government to take the necessary measures to amend Act No. 2822 of 5 May 1983 in order to guarantee workers employed in services which are not essential in the strict sense of the term, including miners, and their organizations, the right to organize their activities and formulate their programmes for the defence of their economic, social and occupational interests, including by recourse to strike action. In this respect, the Committee takes due note of the information supplied by the Government, according to which the possibility of excluding lignite production units feeding thermal power plants from the prohibition on strikes is currently being studied by a committee recently set up with the task of submitting proposals on labour issues. It trusts that, when this matter is being studied, the committee will take account of the principles of freedom of association outlined above. The Committee requests the Government to keep it informed of all measures taken to bring national legislation into conformity with the principles of freedom of association.